Re Sikder Ibrahim

CAMP141/2019

[2021] HKCA 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 141 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 939/2018)

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Before:  Hon Chu JA, Barma JA and Au JA in Court

Date of Judgment: 22 July 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.On 6 January 2021, this court (Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 8 February 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion dated 1 March 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I would like to inform the [court] that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.In the affirmation dated 1 March 2021, the applicant deposed that:

“The plaintiff seeks leave to file Notice of Motion out of time as the plaintiff did not receive the judgment within the time stipulated for appeal. The plaintiff now craves for leave that the court be moved out of time.”

5.The applicant failed to comply with Practice Direction 2.1 and did not lodge the skeleton submission within time, despite having been reminded of the same by the direction made by the Registrar of Civil Appeals on 2 March 2021.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.Having considered the applicant’s Notice of Motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The applicant claimed that he did not receive the judgment “within the time stipulated for appeal” but he did not give any particulars.  He also did not explain how he eventually obtained a copy of the judgment.  We nonetheless go on to consider the merits of the intended appeal.

8.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.The applicant complained that there are errors of law in the Board’s Decision and that the Board did not consider his actual situation.  This ground does not identify any error in our judgment and it is therefore not a valid ground of seeking leave to appeal to the Court of Final Appeal.  Further, this was not a ground advanced in the application for extension of time to appeal before us and the applicant did not explain why leave should be granted to him to argue this ground now, well outside of the time limit for judicial review.  In our view, this ground is not reasonably arguable before the Court of Final Appeal.

10.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.For these reasons, the Notice of Motion dated 1 March 2021 is dismissed.

The applicant acting in person